Opinion
19-P-118
05-13-2020
COMMONWEALTH v. FELIX CUSTODIO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Felix Custodio, was found guilty of possession of a class B substance (fentanyl). He appeals, arguing that his motion to suppress was wrongly denied because the police officers who stopped him did not have a reasonable suspicion that he was engaged in drug transactions. We affirm.
Background. We supplement the facts found by the motion judge with uncontested evidence that the judge necessarily credited from the hearing on the motion to suppress. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). On November 24, 2016, shortly before 3:58 P.M., an unidentified woman called a recorded 911 telephone line at the Lawrence police department to report that she was watching ongoing drug transactions. Specifically, she said that a man dressed in gray and wearing a black hat appeared to be selling drugs from a blue Honda Odyssey with tinted windows at the Saunders Crossing Apartment complex on 11 Diamond Street in Lawrence (Saunders complex). The operator informed the caller that the line was recorded and the recording reveals the following:
The sole testifying witness at the hearing was Lawrence police Officer Ana Villavizar. The judge "found her to be credible in all respects." He also noted that the defendant did not "challenge the veracity or accuracy of any aspect of the officer's testimony."
The Saunders complex is a series of buildings that curve around each other with approximately twenty units in each building.
911 Caller (C); Lawrence police department call taker (LPD CT).
"C: Yes, hi, I would like to know if maybe you could send a cruiser to 11 Diamond Street, the Saunders Crossing Apartments."
"LPD CT: 11 Diamond Street? Is there a floor or an apartment number?"
"C: No, it's, it's, let me explain to you. It's a blue Odyssey with dark windows. The plate ends in 488, I can't get the first three numbers. But this guy's been selling drugs to people all day today. He's been sitting in that van all day. The van has dark windows, and he does not live here."
"LPD CT: Okay, and it's . . ."
"C: I just saw a transaction. It's parked next to the building, be number 16. There's a school bus there, and he's parked to, right next, right in, in the parking lot. In there. It's a dark, it's a blue Honda Odyssey. The guy has a hat, and he's dressed in gray, way that the, with the braids on."
"LPD CT: Okay."
"C: And he's done four transactions."
"LPD CT: Do you know what color [the hat] is?"
"C: Black."
"LPD CT: Black."
"C: And he's sitting inside the, inside the van. And he's been, I seen, I don't know if it's him, because it has really dark windows, but he's done three transactions to New Hampshire license plates."
"LPD CT: Okay. Is there a number that we can call you back, in case we have any other questions?"
"C: Well, I'm, I'm going, I just want them to come please, because that's why I'm reporting it. The man says to report it, that they would send someone. So that's what I'm doing."
"LPD CT: Okay. But if we have any other questions, we can't call you back?"
"C: Well, I'm, I'm on my way out. But I want them to come, please."
"LPD CT: Okay. We'll send an officer in the area. Thank you."
"C: Okay. Thank you."
At approximately that time, Lawrence police officers Ana Villavizar and Edward Estrada were patrolling nearby; at 3:58 P.M., they were dispatched to the Saunders complex. The dispatcher gave the officers the information about the location, make, model, color, and partial license plate; the suspected involvement in drug sales; the description of the suspected drug dealer; and the fact that there had been multiple calls from different parties about the Honda Odyssey and the related suspected drug activities.
When they arrived at the complex, after driving about thirty feet, the officers observed a blue Honda Odyssey matching the 911 caller's description parked in front of an apartment building. The officers were unable to see the occupants in the vehicle because the windows were heavily tinted. Villavizar parked behind the vehicle, blocking it, and activated her cruiser's emergency lights. Villavizar started to approach the driver's side and Estrada approached the passenger side. Before Villavizar could get to the driver's side, she heard Estrada yell, "Get back in the car. Get back in the car." She then went to the passenger's side to assist Estrada. The passenger, whom she identified as the defendant, was "stepping back sideways with his hands in his pockets and he repeatedly stated, 'What happened? What happened?'" Estrada repeatedly told the passenger to get back into the car; Estrada was speaking English, but Villavizar, whose first language was Spanish, repeated the command in Spanish. She noticed that the defendant's clothing and his hair style matched the description she had been given -- although she couldn't see whether he had the hat on. Because the defendant refused repeated orders to take his hands out of his pockets, the officers, fearing for their safety, struggled with him and took him to the ground.
Once the defendant was handcuffed, Villavizar turned her attention to the driver, who also had gotten out of the car and was edging away. She repeatedly had told him to stay still while the officers were struggling with the defendant, but he ran away instead. The officers seized a quantity of drugs, $760 in cash, and a cell phone from the defendant, the car, and the immediate vicinity of the spot where the defendant was placed on the ground.
The defendant was indicted for trafficking in fentanyl, ten grams or more, in violation of G. L. c. 94C, § 32E (c 1/2); the Commonwealth subsequently reduced that charge to possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A. The defendant filed a motion to suppress all of the evidence seized during the stop; at an evidentiary hearing on the defendant's motion to suppress, the Commonwealth presented testimony from Villavizar, a recording of the 911 call to the Lawrence police department, and a Lawrence police incident report relating to the 911 call.
The motion judge denied the defendant's motion to suppress in a fourteen-page memorandum of law; his findings were thorough and careful. He reasoned that the information available to the police prior to the seizure was sufficient to deem the caller reliable, and to provide reasonable suspicion of drug trafficking by one or more occupants of the car. In reaching his conclusion, the judge found that the circumstances supported the reliability of the 911 caller's information, noting, in particular, the risk the information posed to the 911 caller's anonymity, independent police corroboration of the tip, and the excited nature of the call. He noted that, while standing alone, each factor would be insufficient to establish the reliability of the tip as a whole, together they were sufficient to establish the reliability of the tip for purposes of reasonable suspicion. The defendant appeals from the denial, and we affirm.
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (quotation omitted). Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We then "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
First, the parties agree that the defendant was seized when Villavizar parked the cruiser behind the Honda Odyssey, blocking it, and activated the cruiser's lights. The issue for us, then, is whether, when she did that, she had a reasonable suspicion of criminal activity, based upon the information she had received.
Where the Commonwealth seeks to establish reasonable suspicion for a motor vehicle stop based on a police dispatch, "the stop is lawful only if the Commonwealth establishes both the indicia of reliability of the transmitted information and the particularity of the description of the motor vehicle." Commonwealth v. Depiero, 473 Mass. 450, 454 (2016), quoting Commonwealth v. Lopes, 455 Mass. 147, 155 (2009). The defendant does not challenge the particularity of the 911 caller's description of the motor vehicle. Accordingly, we review to determine whether the 911 caller's information prompting the dispatch bore sufficient indicia of reliability. See Depiero, 473 Mass. at 454.
Under the Aguilar-Spinelli test, "[t]o establish the reliability of the information under art. 14 . . ., the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the underlying circumstances demonstrating that the source of the information was credible or the information reliable (veracity test)" (quotations omitted). Depiero, 473 Mass. at 454. Where, as here, "the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Commonwealth v. Mubdi, 456 Mass. 385, 396 (2010), quoting Commonwealth v. Lyons, 409 Mass. 16, 19 (1990).
Since the defendant does not challenge the basis of knowledge test, we turn to the veracity test. Satisfying the veracity test is more difficult for the Commonwealth to prove when the 911 caller is anonymous. See Commonwealth v. Anderson, 461 Mass. 616, 622, cert. denied, 568 U.S. 946 (2012). "At the same time, [i]t is important to recognize that [private individuals] who report criminal activity justifiably may be concerned for their own safety if their identity becomes known to the persons subsequently investigated or arrested, and for this reason may wish to remain anonymous." Commonwealth v. Arias, 481 Mass. 604, 619 (2019), quoting Commonwealth v. Cavitt, 460 Mass. 617, 629 (2011). "Such circumstances should not stand as an insurmountable impediment to a favorable assessment of [the informant's] reliability" (quotation omitted). Arias, 481 Mass. at 619.
There are at least three ways that an anonymous tip may be found to be reliable. A long recognized method arises when the caller places his or her anonymity at risk. See Commonwealth v. Costa, 448 Mass. 510, 517 (2007) ("By providing information to the police after knowing that her call was being recorded, and that the number she was calling from had been identified, we conclude that the caller placed her anonymity sufficiently at risk such that her reliability should have been accorded greater weight than that of an anonymous informant"). A second method occurs when the police are able independently to corroborate the information. See Depiero, 473 Mass. at 457, quoting Anderson, 461 Mass. at 623 ("[T]he police observation and investigation in [that] case adequately corroborated the details provided by the unidentified caller, such that the information exhibited 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop'").
Also, and significantly in this case, an "excited utterance" may provide its own indicator of reliability. See Commonwealth v. Depina, 456 Mass. 238, 244 (2010), quoting Commonwealth v. DiMonte, 427 Mass. 233, 236 (1998) ("Corroboration, however, is not the only way the Commonwealth can establish the reliability of an anonymous caller. Under our common law of evidence, we have recognized that a statement may be sufficiently reliable to be admitted in evidence as an exception to the hearsay rule where it is made in reaction to a startling or shocking event if its utterance was 'spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it [tends] to qualify, characterize and explain the underlying event'"). See also Commonwealth v. Santiago, 437 Mass. 620, 623 (2002); Mass. G. Evid. § 803(2) (2019). It is not a requirement of admissibility that the declarant be an actual participant in the startling event, as long as the declarant has personal knowledge of the event. Commonwealth v. Harbin, 435 Mass. 654, 657 (2002). "[A] bystander's declarations would be admissible." Id., quoting 6 J. Wigmore, Evidence § 1751, at 222-223 (1976). Compare Depiero, 473 Mass. at 456 n.6.
Furthermore, a combination of these three methods of establishing reliability also has been found to be sufficient. See Anderson, 461 Mass. at 625 ("the anonymous caller here passed the less rigorous veracity test needed for reasonable suspicion where there was independent corroboration of the information furnished by the caller and where the call was made immediately after the startling event of observing two men who appeared to have just committed a crime make their getaway").
The defendant argues that the motion judge erred by inflating his evaluation of the caller's reliability. The defendant's argument hinges on Depiero, supra, where the court declined to endorse the U.S. Supreme Court's reliance in Navarette v. California, 134 S. Ct. 1683 (2014), on the use of a 911 system as an independent indicium of reliability for an anonymous tip. Depiero, 473 Mass. at 452. Instead, Depiero instructs that, as to reliability, the focus should be on whether the anonymous caller is aware that the police may identify her; reliability may be found only where the caller is aware of a risk to her anonymity. See id. at 455 ("It is the tipster's belief in anonymity, not its reality, that will control [her] behavior" [quotation omitted]). Here, the 911 caller did not provide her name or phone number, despite being asked twice. However, the caller indicated that she witnessed the blue Honda Odyssey and the defendant selling drugs all day at the Saunders complex and she knew the defendant did not reside at the Saunders complex. We are persuaded that it may be reasonably inferred from this information that the caller resided at the Saunders complex. While this would not be sufficient to establish reliability on its own, we conclude that the judge did not err in reasoning that the circumstances indicated the caller was at least somewhat more reliable than a fully anonymous informant. See Arias, 481 Mass. at 619-621; Depiero, 473 Mass. at 455-456.
Next, the motion judge fully credited Villavizar's testimony that police had received multiple calls from different parties regarding the Honda Odyssey and the related drug activities. That finding provided some corroboration of the anonymous call. The defendant argues that the finding is not supported by the testimony, and thus was clearly erroneous. He contends that the testimony does not support the inference that Villavizar knew of the multiple calls before blocking the Odyssey, and, because Villavizar did not know anything about the content of the calls, finding any corroboration of the details in the 911 call is error. We disagree.
The defendant is correct that "[i]ndependent corroboration is relevant only to the extent that it was known to the police before the stop was initiated; information learned during an investigative stop cannot provide reasonable suspicion for the stop." Anderson, 461 Mass. at 623. However, the judge's inference from the officer's testimony is not unreasonable. Specifically, Villavizar testified, "We had multiple calls. One of them I know came in through a 911 recorded line." When asked later whether she knew who the 911 caller was, Villavizar reiterated, "From the 911 call, no, but we did receive multiple calls from different parties." Further, the fact that the officer did not know more about the other calls does not mean that she was not told that there were multiple reports of drug activity at that location. It is unlikely that the dispatcher would have related to her the specifics of overlapping information from multiple calls. The situation itself also corroborates the existence of multiple calls. The 911 call indicated that the defendant had been selling drugs to people, including to people in three separate vehicles with New Hampshire license plates, all day long, from a vehicle parked at the Saunders complex. Villavizar testified that the Saunders complex is densely populated, consisting of a series of buildings that curve around each other with approximately twenty units in each building. It is a reasonable inference that conspicuously selling drugs in a densely populated apartment complex all day would lead to multiple complaints to the police. Finally, the judge clearly gave only limited weight to this factor.
The defendant next argues that the judge committed error in finding that the 911 caller's veracity was "bolster[ed] by the excited utterance/present sense impression nature of her related observations." Apparently, counsel does not believe that the caller sounds excited enough; he argues, "She simply does not." We disagree.
Under the excited utterance theory, a caller may be considered more reliable when "the excited nature of [the] telephone call supports the reliability of the caller by reasonably negat[ing] premeditation or possible fabrication." Anderson, 461 Mass. at 625, quoting Depina, 456 Mass. at 245. Here, since the evidence is a recorded 911 call, we review de novo. We come to the same conclusion as the motion judge, that is, that the reliability is bolstered under the excited utterance theory. See Depina, 456 Mass. at 245, citing Commonwealth v. Burgess, 450 Mass. 422, 426-430 (2008) ("We need not decide whether this anonymous declarant's telephone call to the police would be admissible in evidence at trial as an excited utterance [or whether its admission in that context would satisfy the confrontation clause of the Sixth Amendment to the United States Constitution]").
Specifically, the caller is describing an ongoing crime, not one that took place in the past, and, while in the process of describing it, she interrupted the police operator to report yet another transaction. When she did so, her voice clearly changed to reflect something new taking place. All in all, her excited reaction to witnessing ongoing drug transactions, and her urgency in asking that the police respond to this as she was watching -- including a transaction that took place during the call itself -- make fabricating the call for some other reason very unlikely. Compare Anderson, 461 Mass. at 620 (reliability found under excited utterance theory when caller reported she witnessed two black males "hop into" silver or gold Toyota Camry automobile, driven by woman, with Massachusetts registration number 22CO77, and "they headed up Parkman Street towards Dorchester [Avenue]" eight minutes after robbery).
Recent case law suggests that reliability may also be adduced by the extent to which the informant provides factual details. See Arias, 481 Mass. at 619 ("[T]he reliability of a tip may be adduced from the extent to which an informant provides factual details. [I]t is especially important that the tip describe the accused's criminal activity in sufficient detail that the [court] may know that [it] is relying on something more substantial than a casual rumor . . . or an accusation . . . . While . . . detail, by itself, does not ordinarily suffice to establish reliability, . . . it remains a factor in the over-all assessment of the informant's reliability" [citations and quotations omitted]).
In sum, we are satisfied that the motion judge did not err in concluding that the underlying circumstances sufficiently demonstrated the reliability of the information provided by the 911 caller. See Anderson, 461 Mass. at 625. We are therefore satisfied that the police had reasonable suspicion to justify the investigatory stop of the defendant.
Judgment affirmed.
By the Court (Hanlon, Lemire & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 13, 2020.